Man loses C&P Phantom Withdrawl case

[Nicholas Bohm]

Roland Perry wrote:
> http://www.finextra.com/fullstory.asp?id=20102 and judgement at:
> http://www.alikelman.com/jobhbos.pdf

For those disinclined to read the whole, the essence is at paragraph 20:

"20.	I do not accept the Claimant’s proposition that each step in the
process has to be expressly demonstrated. I do think that the absence of
a history of successful fraudulent attacks on online chip and PIN
transactions, and the absence of any evidence of systems failure, as
showing that these were transactions that can be taken at face value,
(both of which are supported by the evidence of Mr Baker and Mr Brown),
are important pieces of evidence from which it is open to the court to
draw the inference that these were transactions that took place using Mr
Job’s card and his PIN. That is a conclusion that I do reach in this case."

The first sentence to some extent probably reflects the fact that in a
case which was through most of its preparatory phases managed by a
litigant in person (for whom English was not his first language), there
may not have been a sufficiently explicit and effective challenge to the
reliability of computer systems in general (and banking systems under
attack by adversaries in particular), so as to persuade the judge that
express proof was in fact necessary.

The second sentence places weight on the absence of evidence (somewhat
odd in itself), and suggests that the judge may have overlooked the fact
that the absence of a history of successful fraudulent attacks on online
chip and PIN transactions is no more than a reflection of the fact that
the banks deny that such a thing is possible and can always blame the
customer instead.  The argument is clearly circular, in assuming what it
is supposed to prove.

The main conclusions that I would draw are that such cases need to be
managed from an early stage by well-informed lawyers, and that expert
witnesses may have more work of general education to undertake than
their background would lead them to assume.

Nicholas
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